TC-82

IN THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE

THE HAGUE, THE NETHERLANDS

THE CASE CONCERNING THE EXTRADITION, ASYLUM AND

DIPLOMATIC IMMUNITIES BETWEEN THE REPUBLIC OF VHAMA
AND THE FEDERAL REPUBLIC OF RABAK

REPUBLIC OF VHAMA
APPLICANT
v.
FEDERAL REPUBLIC OF RABAK
RESPONDENT

MemorandumfortheApplicant

DrawnandFiledbyCounselson BehalfofApplicant

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Memorandum on Behalf of the Applicant
 Table of Contents

Table of Contents………………………………………………………………………….…...

Index of Authorities…………………………………………………………………………....

Statement of Jurisdiction………………………………………………………………………

Questions Presented.……………………………………………………………………….….

Statement of Facts.…………………………………………………………………………...

Summary of Pleadings.…………………………………………………………...……….…

Arguments Advanced………………………………………………………………………...

I. The Federal Republic of Rabak is under an obligation to extradite Mr. Scodik under the
extradition treaty and the Convention on Suppression of Terrorist
Financing............................................................................................................

II. The Federal Republic of Rabak has abused its diplomatic immunities by providing
asylum to Ms. Roselle in its embassy, as no such rule is recognized under general
international law.

III. The Federal Republic of Rabak has abused Consular immunities by smuggling gold from
Vhama in diplomatic bags, and the Republic of Vhama is entitled to reparation for the
same.

Prayer for Relief……………………………………………………………………………...

 Index of Authorities

Treaties and Conventions

U.N. Documents

Judicial Decisions

Sr. No Cases

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Memorandum on Behalf of the Applicant
24.

Books, Journals, Articles

Legal Databases
1. Hein Online
2. Manupatra
3. SCC Online
4. WestLaw

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Memorandum on Behalf of the Applicant
 Statement of Jurisdiction

In accordance with Article 40 of the Statute of the International Court of Justice, the Republic
of Vhama and the Federal Republic of Rabak submitted the following dispute to the Court on
10 August 2021. The parties signed a special agreement to submit their dispute to the Court
for resolution. See Special Agreement Submitted to the International Court of Justice by the
Republic of Vhama and the Federal Republic of Rabak Concerning Extradition, Asylum and
Diplomatic Immunities.

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Memorandum on Behalf of the Applicant
 Statement of Facts

1. The Republic of Vhamais a country in West Africa and is the 2nd largest producer
of gold in the world and largest producer in Africa. People’s Liberation Front of
Vhama (PLFV) is a rebel group and they have been listed as a terrorist organisation in
2016, ever since they started committing crimes and terrorist acts in Vhama including
bombing and violent attacks against the military and police.
2. The Federal Republic of Rabakis a country in West Asia and is a democratic
republic, formed from a federation of ten states. It is also one of the world’s major
gold trading hubs and was the fifth-biggest importer and fourth-biggest exporter of
gold globally in 2019.
3. On 2nd April, 2020 at around 8:00a.m. the Vhama Police authorities intercepted
information of a bomb in one of the bags in the Vhama International Airport at
Mackra, planted by the PLFV. Although no bomb was found, one of the diplomatic
bag bearing visible external marks of its character sent by Mr. AzekAdala,
Consulate-General of Rabak, suspected to contain contraband was scanned without
the permission of the Rabak’s authorities and his bag was forcefully opened in
presence of Mr. Uzbek Shaza, diplomatic courier designated by the Rabak authorities.
4. A cache of gold weighing 35 kilograms was seized from the diplomatic bag at
11:00a.m. In return, the Rabak’s authority sent an official letter issued on the same
day, and claimed violation of consular and diplomatic immunities. In the letter, Rabak
blamed the ex-employees for the crime and promised to cooperate in the
investigation.
5. Vhama referred the gold smuggling matter to the National Investigating Agency
(NIA), the highest investigating agency in Vhama.The ‘Vhama National Bank
(VNB) Scam’ also came into light which related to fraudulent letter of undertaking
worth US$1.4 billion issued by Vhama National Bank at its Macka branch, making
Vhama National Bank liable for the amount. The fraud was allegedly organized M/s
Scodik Diamond owned by the businessman Mr. VironScodik, engaged in gold and
diamond business in Vhama.
6. Mr. Scodik, after selling all his properties in Vhama worth about $75 million,
absconded in March 2020, days before the news of scam came to light.On 25th April,

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Memorandum on Behalf of the Applicant
 2020 the Vhamian police approached the Interpol to issue a Red Corner Notice
(RCN) against Mr. VironScodik in connection with its probe into the VNB fraud.
7. On 29th April, 2020 Ms. Roselle Almatah, a private staff at the consular office, was
arrested and detained by the Vhamian authorities and was interrogated for more than
5 hours and then released on bail. On 2 nd May, 2020 an arrest warrant was issued
against her and she was charged under Section 16, 17 and 18 of Unlawful Activities
Prevention, Act of Vhama. However, she had sought asylum in the Embassy of
Rabakearlier that day. On the same day, NIA Officers searched Mr. Adala’s
residence.
8. On 30th April, 2020 he was put under house arrest and was booked under Sections 16,
17 and 18 of the Unlawful Activities Prevention, Act and Customs Act of Vhama.
9. In the letter dated 1st May, the Government of Rabak accused Vhamian authorities for
blatantly violating the consular and diplomatic immunities under the Vienna
Conventions and customary laws. The Government of Vhama responded by claiming
that Mr. Azek enjoyed “only functional immunity” and he was the prime accused in
the case so his arrest and detention was required for further investigation into the case.
10. On 20th May, 2020 the special court in Vhama declared Mr. Scodik as ‘Fugitive
economic offender’ and the Vhamian authorities requested his extradition from
Rabak where he had found safe haven. However, he was not found.
11. On 20th August, 2020 Mr. Scodik was arrested in Rubai after a warrant was issued
against himby the Rabak’s authorities, however, he was released on bail after few
weeks on the ground of “deteriorating mental health and risk of suicide”.In
September, 2020 Mr. Scodik has applied for asylum in Rabak. In February, 2020
Rabak’s High Court rejected Mr. Scodik’s extradition request. In response, the
Government of Vhama again requested the extradition of Mr. Scodik under the
International Convention for the suppression of the financing of terrorism.
12. On 10th March, 2021 the High Court of Vhama, ordered extension of house arrest of
Mr. Azek by one year. However, on 15 th March, 2021 the government of Rabak
promoted Mr. Azek from Consulate General of Rabak, in Vhama to the Ambassador
of Rabak to United Nations Mission in New York, and requested the Vhamian
government to immediately release Mr. Azek. Vhama however, denied the request.
13. After several negotiations between the Government of Vhama and the Government of
Rabak, no progress was made regarding release of Mr. AzekAdala; surrender of Ms.

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Memorandum on Behalf of the Applicant
 Roselle Almatah and extradition of Mr. VironScodik. Both the countries have
therefore decided to submit the matter of the dispute to the International Court of
Justice under special agreement.

Statement of Issues

Issue 1
Whether The Federal Republic of Rabak is under an obligation to extradite Mr. Scodik under
the extradition treaty and the Convention on Suppression of Terrorist Financing?

Issue 2
Whether The Federal Republic of Rabak has abused its diplomatic immunities by providing
asylum to Ms. Roselle in its embassy, as no such rule is recognized under general
international law?

Issue 3
Whether The Federal Republic of Rabak has abused Consular Immunities by smuggling gold
from Vhama in diplomatic bags, and the Republic of Vhama is entitled to reparation for the
same?

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Memorandum on Behalf of the Applicant
9
Memorandum on Behalf of the Applicant
 Summary of Arguments

Issue 1
Whether The Federal Republic of Rabak is under an obligation to extradite Mr. Scodik
under the extradition treaty and the Convention on Suppression of Terrorist
Financing?

Issue 2
Whether The Federal Republic of Rabak has abused its diplomatic immunities by
providing asylum to Ms. Roselle in its embassy, as no such rule is recognized under
general international law?

Issue 3
Whether The Federal Republic of Rabak has abused Consular Immunities by
smuggling gold from Vhama in diplomatic bags, and the Republic of Vhama is entitled
to reparation for the same?

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Memorandum on Behalf of the Applicant
11
Memorandum on Behalf of the Applicant
 Arguments Advanced

Issue 1
Whether The Federal Republic of Rabak is under an obligation to extradite Mr. Scodik
under the extradition treaty and the Convention on Suppression of Terrorist
Financing?

The counsel on behalf of the Applicant humbly pleads that Mr. Scodik is accused of an extraditable
offence in the territory of both the Federal Republic of Rabak and the Republic of Vhama and that the
Federal Republic of Rabak is under an obligation to extradite him. 

1. According to the Extradition Treaty the Federal Republic of Rabak is under an

obligation to extradite Mr. Scodik

 Extradition process refers to an action wherein one sovereign jurisdiction (requested State)
delivers a person either acquitted or convicted of an international crime to the law
enforcement of another jurisdiction (requesting State) upon their official request. Compliance
with an extradition request involves transferring the physical custody of the accused person to
the recognized legal authority of the requesting jurisdiction. 1A dilemma arises about the
criminals who committed a crime in some country but got the opportunity to flee away to
another country, to escape from being prosecuted by the government where the criminal
committed the offense. It must be established that they can or cannot be given asylum in the
country they ran to or that they should or should not be left untried as the country lacks
jurisdiction on the criminal. Thus, the concept of extradition has been founded on the social
principles that seek the community’s well-being at large.

 According to the Extradition Treaty between the two nations of Rabak and Vhama, Article 1
states 

‘The Contracting States shall extradite any person found in their respective territories who is
accused or convicted of an extraditable offence in the territory of the other contracting State,
in accordance with the rules and stipulations contained in the subsequent Articles, whether
such offence was committed before or after the entry into force of this Treaty.’

1
Sadoff, David A. (24 December 2016). Bringing International Fugitives to Justice: Extradition and its
Alternatives. Cambridge University Press. p. 43. ISBN 9781107129283.
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Memorandum on Behalf of the Applicant
  According to the same treaty, to establish if Mr. Scodik is an individual who must be
extradited, we must also read Article 2 which states that

‘The following persons shall be extradited:

(a) Persons accused of an offence punishable under the laws of both the contracting States by
imprisonment for a period of at least one year or more.

(b) Persons sentenced by the Courts of the requesting State with imprisonment for at least six
months in respect of an extraditable offence.’

 The signing countries must honour the collaboration, even in cases where the request for
extradition was not accepted. As due to several political reasons, the request for extradition is
rejected. In such circumstances, even though an accused cannot be extradited due to political
or public reasons, he can be tried under Judicial Cooperation in Civil and Commercial matters
Agreement signed by both the countries in 1993. Such treaties strengthen the criminal laws of
both the countries and simultaneously threaten the wrongdoers who think that they can exit
the country post committing an offence.

 Similarly, Article 4 of the Extradition Treaty lays down the circumstances when extradition
can be granted as follows: 

‘The party to this treaty can request the extradition of any accused person, even when such
an extraditable offense has not been committed within its territory, as long as the requesting
country can exercise jurisdiction over such offense.’

 Extradition can be granted against a person for an extraditable offense by the requested state,
as long as, on considering the actions of such person against whom extradition is sought as
per the laws of the requested state, would constitute an extraditable offense within the borders
of the requesting state. The Hon'ble Apex Court in Bhavesh Jayanti Lakhani v. State of
Maharashtra has held that arrest of a fugitive criminal can be made at the instance of the
Central Government only when request to this effect is received from foreign country and not
otherwise.

 In the current case, Mr. Scodik was accused of illegally financing the People' Liberation Front
of Vhama (PLFV) that was listed as a terrorist organisation. He was charged for criminal
conspiracy, criminal breach of trust, cheating and dishonesty including delivery of property,
corruption, money laundering, fraud, embezzlement and breach of contract. However, he
absconded in March 2019. Previously, he had been engaged in gold and mining business
activities and his company M/s Scodik diamond had allegedly organized a fraud. It was the
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Memorandum on Behalf of the Applicant
 ‘Vhama National Bank (VNB) Scam’ wherein a fraudulent letter of undertaking worth U.S
$1.4 Billion was issued by Vhama National Bank at its Macka branch and it was now liable
for the amount. 

2. According to the Convention on Suppression of Terrorist Financing the Federal

Republic of Rabak is under an obligation to extradite Mr. Scodik
 The counsel humbly submits that Article 2 of the Convention on Suppression of Terrorist
Financing states that 
‘1. Any person commits an offence within the meaning of this Convention if that person by
any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the
intention that they should be used or in the knowledge that they are to be used, in full or in
part, in order to carry out:
(a) An act which constitutes an offence within the scope of and as defined in one of the
treaties listed in the annex.’
By virtue of this, financing a terrorist organisation is an offence and in the current case, Mr.
Scodik under the ‘Vhama National Bank (VNB) Scam’ has been accused of allegedly funding
the People's Liberation Front of Vhama (PLFV). 
 According to Article 10 of the the Convention on Suppression of Terrorist Financing 
‘1. The State Party in the territory of which the alleged offender is present shall, in cases to
which Article 7 applies, if it does not extradite that person, be obliged, without exception
whatsoever and whether or not the offence was committed in its territory, to submit the case
without undue delay to its competent authorities for the purpose of prosecution, through
proceedings in accordance with the laws of that State. Those authorities shall take their
decision in the same manner as in the case of any other offence of a grave nature under the
law of that State.’
In the current case, as Mr. Scodik has not been submitted before competent authorities for the
purpose of prosecution. At this point, if they do not do the same it will be a violation of
Article 10 and they are obliged to extradite Mr. Scodik under the Convention on Suppression
of Terrorist Financing.
 The two states have executed an Extradition Treaty with each other. As per Article 2 of the
said Treaty, a person sentenced by the court of the requesting State with the imprisonment for
six months in respect of an offence, is liable to be extradited.

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Memorandum on Behalf of the Applicant
Issue 2
Whether The Federal Republic of Rabak has abused its diplomatic immunities by

providing asylum to Ms. Roselle in its embassy, as no such rule is recognized under
general international law?

1. Ms.Roselle cannot bank on Functional or Consular Immunity

 A clear and radical distinction should be made between the concept of both the State
officials’ personal and functional immunities (and between the corresponding
international norms). Effectively, some differences are clear and well-settled. The
main one concerns the duration of immunity. While personal immunity is only
granted to foreign officials for the duration of their mandate (covering acts performed
before and during the mandate) and ceases to apply after the termination of their
mandate, functional immunity is granted both during their mandate and after its
termination (but the immunity only covers acts performed in the context of the
mandate).
A second difference concerns the scope of the application of immunity. While
personal immunity covers both the ‘private’ and ‘official’ acts of foreign officials who
benefit from it2, functional immunity only covers the acts performed by State agents
in the discharge of their duties (so-called ‘official acts’). However, the interpretation
of the concept of ‘official acts’ is itself the subject of differing opinions.
Moreover, there is general consensus on the fact that personal immunity is only
available to a limited number of State officials (diplomatic agents, heads of State and
government, ministers of foreign affairs, members of special missions), all of whom
perform duties pertaining to their State’s international relations.
 Functional immunity arises from customary international law and treaty law and
confers immunities on those performing acts of state (usually a foreign official). Any
person who, in performing an act of state, commits a criminal offence is immune from
prosecution. The immunity, though applied to the acts of individuals, is an attribute of
a state, and it is based on the mutual respect of states for sovereign equality and state
dignity. States thus have a significant interest in upholding the principle in
international affairs: if a state's officials are to be tried at all for anything, it will be at
home. It is pertinent to note that this immunity is only in relations to offences
2
H F Van Panhuis, ‘In the Borderline Between the Act of State Doctrine and Questions of Jurisdictional
Immunities’ (1964).
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Memorandum on Behalf of the Applicant
 committed in performing an act of the State. Offences committed by an individual on
their own accord, while also exploiting their consular position and privileges, do not
fall under the same. This distinction is important also because customary international
law is an aspect of international law involving the principle of custom. Along
with general principles of law and treaties, custom is considered by the International
Court of Justice, jurists, the United Nations, and its member states to be among the
primary sources of international law.

 An examination of practice, especially more recent practice, demonstrates that there is

no norm of customary international law which grants functional immunity from
criminal jurisdiction to foreign officials other than a few likein the categories of
diplomatic agents, heads of State and government and ministers of foreign affairs,
consular agents, and members of special missions. Ms. Roselle Almatah, a private
staff at the consular office under Mr. AzekAdala, Consulate-General of Rabak, in
Vhama. Article 1 of Vienna Convention on Consular Relations, 1963 states that (i)
“member of the private staff” means a person who is employed exclusively in the
private service of a member of the consular post. 

 Article 53 of Beginning and end of consular privileges and immunities under the Vienna
Convention reads as

“Members of the family of a member of the consular post forming part of his household and
members of his private staff shall receive the privileges and immunities provided in the
present Convention from the date from which he enjoys privileges and immunities in
accordance with paragraph 1 of this article or from the date of their entry into the territory of
the receiving State or from the date of their becoming a member of such family or private
staff, whichever is the latest.”

While, Article 37(4) of Vienna Convention on Diplomatic Relationsreads as

“Private servants of members of the mission shall, if they are not nationals of or permanently
resident in the receiving State, be exempt from dues and taxes on the emoluments they receive
by reason of their employment. In other respects, they may enjoy privileges and immunities
only to the extent admitted by the receiving State. However, the receiving State must exercise
its jurisdiction over those persons in such a manner as not to interfere unduly with the
performance of the functions of the mission.”

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Memorandum on Behalf of the Applicant
  However, Article 53 and Article 37(4) cannot be read in isolation. Article 55 of
Respect for the laws and regulations of the receiving State under the Vienna
Convention reads as

“Without prejudice to their privileges and immunities, it is the duty of all persons enjoying
such privileges and immunities to respect the laws and regulations of the receiving State.
They also have a duty not to interfere in the internal affairs of the State.”

Similarly, the Preamble of the Vienna Convention on Diplomatic Relations reads

as“Realizing that the purpose of such privileges and immunities is not to benefit individuals
but to ensure the efficient performance of the functions of diplomatic missions as representing
States.”

 Historical practice shows that domestic courts have denied functional immunity to foreign
officials when they are accused of: a) espionage; b) serious breaches of the law of war; c)
aerial intrusions or unlawful trespassing in foreign territories or maritime spaces. This has
also been confirmed in more recent practice. Moreover, most recent practice demonstrates
that the courts are willing to deny foreign officials functional immunity from criminal
jurisdiction with regard to many other categories of unlawful acts, that is to say besides those
mentioned above. There have also been many cases relating to crimes of murder, abduction or
terrorism committed by foreign officials. Reference can be made, for instance, to the 1962
judgment of a German court in the Staschynskij case;3 the 1984 judgment of an English court
in the Yusufu case;4the arrest warrant of an English court in the Lugovoi case concerning the
murder of Litvinenko; the 1986 judgment of the District Court of Auckland in the Rainbow
Warrior case, as well as the conduct of both  the governments of France and New Zealand
during the dispute; the 2001 judgment of a Scottish court in the Lockerbie case and the
conduct of both Libya and many other States during the dispute. 5 Lastly, the above-mentioned
judgment of the High Court of Kerala in the Enrica Lexie case6 denied the existence of a
customary norm providing all foreign officials with immunity from criminal jurisdiction.

 Moreover, domestic courts have taken a clear and well-reasoned position against the existence
of such a customary norm in two recent and important cases. In the Khurts Bat case, the
English High Court was asked to decide whether the head of the executive office of
Mongolia’s National Security Council – wanted for the crime of abduction among others
3
Bundesgerichtshof, Staschynskji, Entscheidungen des Bundesgerichtshoft in Strafsachen (1963) 87 ff.
4
Lambeth Magistrates’ Court (23 August 1984) R. v Lambert Justices, ex parteYusufu [1985] Crim L Rev 510.
For a description of the case see Franey (n 14) 256-258.
5
For a reconstruction of the events see Franey (n 14) 244-248. See also Scottish High Court of Judiciary (31
January 2001) Megrahi and Fhimah (2001) 40 ILM 582 ff.
6
M.T. Enrica Lexie &Anr v.Doramma&Ors
17
Memorandum on Behalf of the Applicant
 committed in various European States – could claim functional immunity, being a foreign
official who had acted in the exercise of his duties. In its judgment of 2001 the Court denied
such immunity, having conducted an in-depth examination of international practice and
deduced the non-existence of a customary international norm attributing functional immunity
to foreign officials for crimes committed in the territory of a host State or in a third State. In
the Abu Omar case, one of the accused claimed that the CIA agents prosecuted for the covert
abduction of the Egyptian citizen Abu Omar in Milan should enjoy functional immunity from
Italian criminal jurisdiction as foreign State officials. The Italian Court of Cassation, in its
judgment of 2012,7 clearly rejected this claim, affirming the non-existence in international
law of a customary norm regarding the functional immunity of all foreign officials.
According to the Court, such a customary norm does not exist: this is confirmed by the
absence of uniform and consolidated case-law, of continuous and concordant official
declarations of States, and of an unambiguous doctrinal interpretation. On the contrary, the
Court espoused the theory according to which functional immunity is recognized by specific
international norms only in favour of certain categories of State agents in the exercise of the
typical duties of their office. This position was confirmed in 2013 by the Court of Appeal of
Milan, and in 2014 in another judgment of the Italian Court of Cassation.

 In conclusion, international practice testifies, in a rather consistent and uniform way, to the
non-existence of a customary norm regarding the functional immunity of all State officials
from foreign criminal jurisdiction. Any judgments in favour of the existence of such a norm
are based on erroneous or unconvincing grounds.

2.The Federal Republic of Rabak has abused its diplomatic immunities by providing asylum
to Ms. Roselle in its embassy.

 As already submitted,Ms. Roselle Almatah is a private staff at the consular office.

Since Ms. Roselle is not a national citizen of the Federal Republic of Rabak, we must
note that due to effective nationality, there are a lot of difficulties to effective
diplomatic protection of individuals. In the Nottebohmcase , the International Court of
Justice regarded nationality as “a legal bond having as its basis a social fact of
attachment, a genuine connection of existence and sentiments, together with the
existence of reciprocal rights and duties. It may be upon whom it is conferred, either
directly by the law or as a result of an act of the authorities, is in fact more closely
connected with the population of the state conferring nationality than with that of any
other state”. Deriving from the Nottebohm case, it was held that diplomatic protection
7
Corte di Cassazione (sez. V penale) Nasr Osama Mustafá Hassan detto Abu Omar e altri (n 29).
18
Memorandum on Behalf of the Applicant
 from a state to an individual can only provide security if there is “a sufficient bond of
attachment” between an individual and the state from which he seeks diplomatic
protection. Furthermore, even if the individual gains diplomatic protection, he may
still risk prosecution in the country where he is residing.
 According to Article 43A of the Unlawful Activities (Prevention) Act, 1967 which
talks about “power to arrest, search, etc.” —
“Any officer of the Designated Authority empowered in this behalf, by general or
special order of the Central Government or the State Government, as the case may
be, knowing of a design to commit any offence under this Act or has reason to believe
from personal knowledge or information given by any person and taken in writing
that any person has committed an offence punishable under this Act or from any
document, article or any other thing which may furnish evidence of the commission of
such offence or from any illegally acquired property or any document or other article
which may furnish evidence of holding any illegally acquired property which is liable
for seizure or freezing or forfeiture under this Chapter is kept or concealed in any
building, conveyance or place, may authorise any officer subordinate to him to arrest
such a person or search such building, conveyance or place whether by day or by
night or himself arrest such a person or search a such building, conveyance or
place.”
 Section 16 of Unlawful Activities (Performance) Act, 1967reads as
Punishment for terrorist act--
(1) Whoever commits a terrorist act shall,--
(a) if such act has resulted in the death of any person, be punishable with death
or imprisonment for life, and shall also be liable to fine;
(b) in any other case, be punishable with imprisonment for a term which shall
not be less than five years but which may extend to imprisonment for life, and
shall also be liable to fine.
 Section 17 of Unlawful Activities (Performance) Act, 1967reads as
“Punishment for raising funds for terrorist act.—
Whoever, in India or in a foreign country, directly or indirectly, raises or provides
funds or collects funds, whether from a legitimate or illegitimate source, from any
person or persons or attempts to provide to, or raises or collects funds for any person
or persons, knowing that such funds are likely to be used, in full or in part by such

19
Memorandum on Behalf of the Applicant
 person or persons or by a terrorist organisation or by a terrorist gang or by an
individual terrorist to commit a terrorist act, notwithstanding whether such funds
were actually used or not for commission of such act, shall be punishable with
imprisonment for a term which shall not be less than five years but which may extend
to imprisonment for life, and shall also be liable to fine.
Explanation.--For the purpose of this section,
(a) participating, organising or directing in any of the acts stated therein shall
constitute an offence;
(b) raising funds shall include raising or collecting or providing funds through
production or smuggling or circulation of high quality counterfeit Indian currency;
and
(c) raising or collecting or providing funds, in any manner for the benefit of, or, to an
individual terrorist, terrorist gang or terrorist organisation for the purpose not
specifically covered under section 15 shall also be construed as an offence.”

 Section 18 of Unlawful Activities (Performance) Act, 1967reads as

“Punishment for conspiracy, etc.--Whoever conspires or attempts to commit, or
advocates, abets, advises or [incites, directly or knowingly facilitates] the
commission of, a terrorist act or any act preparatory to the commission of a terrorist
act, shall be punishable with imprisonment for a term which shall not be less than five
years but which may extend to imprisonment for life, and shall also be liable to fine.”

 In the current case, an arrest warrant was also issued against Ms. Roselle, who was
also charged under Section 16, 17 and 18 of Unlawful Activities Prevention, Act of
Vhama. However, due to the sudden turn of the events on the previous day, Ms.
Roselle anticipated her arrest and had sought asylum in the Embassy of Rabak in the
early hours of the day.
Thus, by providing Ms. Roselle asylum instead of handing her over to the competent
authorities in the right jurisdiction, and by the fact that she has been charged under
Section 16, 17 and 18 of Unlawful Activities Prevention, Act of Vhama i.e., the
Sending State in this Consular relation, the Federal Republic of Rabak has abused its
diplomatic immunities by providing asylum to Ms. Roselle in its embassy, unfairly,

20
Memorandum on Behalf of the Applicant
 arbitrarily and against the ethics of respectfully upholding the legal requirements of
the other State, Vhama.

Issue 3
Whether The Federal Republic of Rabak has abused Consular Immunities by
smuggling gold from Vhama in diplomatic bags, and the Republic of Vhama is entitled
to reparation for the same?

1. The decision to check the diplomatic bag was not arbitrary

 The counsel on behalf of the Applicant humbly pleads that Article 35(3) of the
Vienna Convention on Consular Relations reads as
“The consular bag shall be neither opened nor detained. Nevertheless, if the competent
authorities of the receiving State have serious reason to believe that the bag contains
something other than the correspondence, documents or articles referred to in paragraph 4
of this article, they may request that the bag be opened in their presence by an authorized
representative of the sending State. If this request is refused by the authorities of the sending
State, the bag shall be returned to its place of origin”

 In the current case, bags were being checked due to a terrorist threat and the likely
presence of a bomb at the airport. This urgent and unforeseeable circumstance
required immediate action. After detailed search operation, no bomb was found but
one of the diplomatic bag sent by Mr. AzekAdala, Consulate-General of Rabak, in
Vhama addressed to Mr. WahiRodala, Secretary, Ministry of External Affairs of
Rabak, was suspected to contain contraband. The bag was opened in presence of Mr.
Uzbek Shaza, diplomatic courier designated by the Rabak authorities. Rabak raised
issues about the fact that the bag was scanned without the permission of the Rabak’s
authorities and that the permission was not sought from the Embassy of Rabak or the
Consulate-General office in Vhama. However, after careful reading of
aforementioned Article 35(3), it is pertinent to note that the use of the word ‘may’
gives legroom for such unforeseeable and necessary actions.

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Memorandum on Behalf of the Applicant
  It is also important to remember that a cache of gold weighing 35 kilograms (at the
official market rate - more than $3.8 million) was seized from the diplomatic bag at
11.00am. It was falsely listed as an official stationery and xerox machine which in
itself is indicative of a means to conceal the crime being committed.

 Besides the Rabak’s authority sending an official letter issued on the same day, and
claiming violation of consular and diplomatic immunities ‘by scanning and opening
the diplomatic bag without official permission’, Rabakalso blamed the ex-employees
for the crime and promised to cooperate in the investigation of the case. However,
mere pinpointing of the blame on the employees does not help Rabak wash their
hands off of liability for the same.

 Even if by the virtue of their Consular posts, the employees are not held liable, the
State they belong to is definitely liable for the crime. The counsel reiterates that
Article 55 of Respect for the laws and regulations of the receiving State under the
Vienna Convention reads as

“Without prejudice to their privileges and immunities, it is the duty of all persons enjoying
such privileges and immunities to respect the laws and regulations of the receiving State.
They also have a duty not to interfere in the internal affairs of the State.”

This issue will further be clarified by proving that (a) The Federal Republic of Rabak has abused
Consular immunities by smuggling gold from Rabak in diplomatic bags, (b) The Republic of Vhama
is entitled to reparation for the same.

2. The Federal Republic of Rabak has abused Consular immunities by smuggling gold from
Rabak in diplomatic bags
 Specific clauses under Article 41 of Vienna Convention on Diplomatic Relations
explicitly state that
“1. Without prejudice to their privileges and immunities, it is the duty of all persons enjoying
such privileges and immunities to respect the laws and regulations of the receiving State.
They also have a duty not to interfere in the internal affairs of that State.”
“2. The premises of the mission must not be used in any manner incompatible with the
functions of the mission as laid down in the present Convention or by other rules of general
international law or by any special agreements in force between the sending and the
receiving State.”

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Memorandum on Behalf of the Applicant
  On 2nd April 2020, a cache of gold weighing 35 kilograms (at the official market rate -
more than $3.8 million) was seized at the airport from the diplomatic bag sent by Mr.
AzekAdala, Consulate-General of Rabak, in Vhama addressed to Mr. WahiRodala,
Secretary, Ministry of External Affairs of Rabak during an emergency terrorist alert
security check. The fact that it was listed as official stationery and xerox machine
gives rise to suspicion for illegal activity in which the parties sending and receiving
the diplomatic bag were aware of the same.
 After this incident being brought to light, the Rabak’s authority sent an official letter
issued on the same day, and claimed violation of consular and diplomatic immunities
‘by scanning and opening the diplomatic bag without official permission’. However,
as already established, this was a necessary act in wake of a plausible terrorist attack
and the safety of several, including citizens from both nations as well as diplomatic
agents were at stake. Further, this does not absolve Rabak from the liability of
smuggling gold and carrying out illegal activities, especially through their diplomatic
agents who can abuse their power of functional immunity for the same.
 In the letter, Rabak blamed the ex-employees for the crime and promised to cooperate
in the investigation of the case. However, the country was liable for its employees as
the illegal act was carried out during the course of their duty.
 The crime wasn’t limited to the mere smuggling of Gold. Vhama referred the gold
smuggling matter to the National Investigating Agency (NIA), the highest
investigating agency in Vhama. Subsequent investigation into the matter led to the
chain of organised crimes and many persons including a host of alleged facilitators,
financiers, and gold traders, were interrogated but no arrest was made. The NIA,
claimed that over 30 such consignments allegedly left Mackra to Rubai since April
2018, around 27 of which were send by Rabak’s Consul General.” The NIA was also
quoted as saying that “250 kilograms of gold was smuggled through Macka Airport in
a similar fashion and most of the money was used for funding terrorism.”
 Section 17 of Unlawful Activities (Performance) Act, 1967 reads as
“Punishment for raising funds for terrorist act.—
Whoever, in India or in a foreign country, directly or indirectly, raises or provides funds or
collects funds, whether from a legitimate or illegitimate source, from any person or persons
or attempts to provide to, or raises or collects funds for any person or persons, knowing that
such funds are likely to be used, in full or in part by such person or persons or by a terrorist
organisation or by a terrorist gang or by an individual terrorist to commit a terrorist act,
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Memorandum on Behalf of the Applicant
 notwithstanding whether such funds were actually used or not for commission of such act,
shall be punishable with imprisonment for a term which shall not be less than five years but
which may extend to imprisonment for life, and shall also be liable to fine.
Explanation. --For the purpose of this section,
(a) participating, organising or directing in any of the acts stated therein shall constitute an
offence;
(b) raising funds shall include raising or collecting or providing funds through production or
smuggling or circulation of high-quality counterfeit Indian currency; and
(c) raising or collecting or providing funds, in any manner for the benefit of, or, to an
individual terrorist, terrorist gang or terrorist organisation for the purpose not specifically
covered under section 15 shall also be construed as an offence.”
 Thus, when laws like Article 41 of Vienna Convention on Diplomatic Relations
that both the States are parties to and domestic laws like Section 17 of Unlawful
Activities (Performance) Act, 1967 are read together, and it is clearly understood
that domestic laws are to be respected by Diplomatic agents regardless of their
immunities, we find that there has been a clear violation of domestic and international
laws at several levels. The laws and regulations of the receiving State, Vhama, were
not upheld and respected and the privileges and immunities were evidently abused
and misused for gross violations of law that affect individuals on the grassroot level,
the Receiving State on a domestic level in terms of monetary loss and possibility of
compromised security for its citizens in light of the terrorist activities as well as the
international community at large.
3. The Republic of Vhama is entitled to reparation for the same

 The republic of Vhama had suffered losses unknwoingly because of the illegal
smuggling of gold to Rabak and since the diplomatic agents of Rabak were involved
in the crime, simply firing the employees and terming them as “ex-employees” in
their letter was not enough. It was pertinent to take on liability, adress the matter and
make reparations as it was revealed that billions of dollars’ worth of gold is being
smuggled out of Vhama every year through the Federal Republic of Rabak–a gateway
to markets in Europe, and beyond. The report claimed that Customs data shows that
the Rabak imported $15.1 billion worth of gold from Vhama in 2016, more than any
other country and up from $1.3 billion in 2006. Much of the gold was not recorded in
the exports of Vhama. This glaring discrepancy in import and export data between the

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Memorandum on Behalf of the Applicant
 two nations led to the trade economists saying that this indicates large amounts of
gold is leaving Vhama with no taxes being paid to the states that produce them.
 Internationally, it was reported that “much of the gold is smuggled from Vhama and is
acquired from local artisanal and small-scale producers”. It was also reported that “the
criminal networks exploit features of the Rabak’s laws and systems, in order to move
cash and gold easily into and out of the country, as well as engage in money
laundering through the Rabak’s property market, international trade, and newer areas
such as crypto assets. Rabak has little documentation and limited regulation as a
result, informally mined gold can be legally imported, tax-free.
 As mentioned, the crime wasn’t limited to the mere smuggling of Gold but also
included the funding of terrorism which is of international concern. The National
Investigating Agency (NIA), the highest investigating agency in Vhama claimed that
over 30 such consignments allegedly left Mackra to Rubai since April 2018, around
27 of which were send by Rabak’s Consul General.” The NIA was also quoted as
saying that “250 kilograms of gold was smuggled through Macka Airport in a similar
fashion and most of the money was used for funding terrorism.”
 Rabak’s regulations as well as the acts of their diplomatic agents during the course of
their duty are thus, directly and indirectly affecting the Republic of Vhama and its
local artisanal and small-scale producers as well as the States where the Gold actually
came from. The funding of terrorism that is being facilitated in some manner through
this smuggling of Gold from Vhama to Rabak is of the utmost concern for the
international community at large. Thus, to admit to the wrongs and partially
compensate for it, the Federal Republic of Rabak owes reparations to the Republic of
Vhama.

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Memorandum on Behalf of the Applicant
 Prayer for Relief

Wherefore In The Light Of Issues Raised, Arguments Advanced And Authorities Cited,
The Counsels on Behalf of the Applicant Most Humbly Prays Before This Hon’ble
Court To:

1. ADJUDGE that The Federal Republic of Rabak is under an obligation to extradite

Mr. Scodik under the extradition treaty and the Convention on Suppression of
Terrorist Financing
2. DECLARE that The Federal Republic of Rabak has abused its diplomatic immunities
by providing asylum to Ms. Roselle in its embassy, as no such rule is recognized
under general international law
3. ADJUDGE that The Federal Republic of Rabak has abused Consular immunities by
smuggling gold from Vhama in diplomatic bags, and the Republic of Vhama is
entitled to reparation for the same

Any Other Order As The Tribunal May Deem Fit In The Interest Of Equity, Justice And
Good Conscience.

For This Act Of Kindness, The Counsels Shall Remain Duty Bound Forever.

Sd/-

COUNSELS FOR APPLICANT

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Memorandum on Behalf of the Applicant